The president’s recent execrable executive order on immigration has many things to unrecommend it. It is illegal, immoral, stupid and against our self-interest. Further, it is poorly written, which may explain the confusion and chaos it provoked. Most often, poor writing is based upon flawed reasoning or fuzzy thinking.
The Declaration of Independence has 1,320 words. The executive order about immigration is 2,866. All the “lawyerisms” are on full display — or rather, the words people who are not lawyers write when trying to make something sound “legal.” (Talking to you here, Steve Bannon.)
The goofy term “pursuant to,” which is almost always a pretentious substitute for “under,” appears seven times.
(g) “Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.”
Using “notwithstanding” means you are contradicting what you said earlier. The phrase “in order to,” appears twice. In the writing seminars I give for lawyers, I tell them to find me an instance where the “in order” adds anything but clutter. No one ever has. Similarly, “until such time as” should be “until,” “on the basis of” should be “based on,” “provided that” should be “if.”
Much of the order concerns reports. The word “report” is used 21 times. It seems that no one is to be trusted to carry out the order, so the secretaries of State and Homeland Security, and sometimes others, are directed to issue reports every 100, 200, 180 or 365 days on myriads of issues. How these officials will have time to do anything except write reports remains to be seen.
The order’s readability is terrible. For comparison, this column is at the grade level of 9.3 — mainly because I quote the bad language in the executive order. Otherwise, would be about 6.5. The paragraph I quoted above tests at grade level 28. is anyone been to the 28th grade? The full text tests out at grade level 19.5. That means it should be understandable to someone who has gone through 19.5 years of formal education (JD., MD., Ph.D.). That number is roughly 3 percent of Americans. But interestingly includes neither of the Cabinet members who are mainly to enforce the order.
Of course, these readability statistics are just numbers, and not infallible. And we can all testify that years of education is not directly correlated with intelligence. But writing so badly as to tax understanding serves no purpose except to confuse. We have seen the confusion this badly drafted — and badly conceived — document has engendered. We surely have enough confusion already.
Mark Painter served as a judge for 30 years, as an adjunct professor at UC Law for 20 and is the author of The Legal Writer and four other books.